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The DOL Fiduciary Rule: Are Commission Structures for Retirement Investment Advisers a Thing of the Past?

On Wednesday, February 9, a Texas federal judge upheld the U.S. Department of Labor’s (DOL) controversial fiduciary rule for retirement investment advisers — just hours after the agency had asked to stay the case in light of President Donald Trump’s directive to it on February 3rd to conduct an “economic and legal analysis” of the … Continue Reading

Updates on Impact of Travel Ban Executive Order: One Week and Counting

Significant confusion has arisen in the week since President Trump issued his Executive Order (EO) entitled Protecting the Nation from Foreign Terrorist Entry Into the United States on January 27, 2017. Our previous summary can be found here. Following a frenetic week at U.S. ports of entry and international airports and increased litigation in several … Continue Reading

Why Can’t I Terminate My Employee for An Unexcused Absence!?

The California Court of Appeals’ recent decision in Bareno v. San Diego Community College is a good reminder for employers about the pitfalls of terminating an employee based on a “technical” policy violation and how easy it is for an employee to put an employer on notice that the employee is taking a protected California Family … Continue Reading

UPDATED – Additional Executive Order Issued with Immediate Impact on Travel to the United States

On Friday January 27, 2017, the president issued an Executive Order (EO) entitled, Protecting the Nation from Foreign Terrorist Entry Into the United States. The EO has yet to be posted on the White House website but the text can be found here. The purpose of this Executive Order, as stated, is to “protect our … Continue Reading

US Supreme Court to Resolve Dispute Over Enforceability of Class Waivers in Arbitration Agreements

  As followers of our blog know, we have been closely watching developments over the past few years involving the tension between the National Labor Relations Board and the courts concerning whether arbitration agreements that require employees to resolve most employment-related disputes in individual arbitration proceedings, and bar the use of class or collective action … Continue Reading

EAT says even expired warnings can be taken into account when dismissing an employee. Sometimes.

In Stratford v Auto Trail VR Ltd the EAT held that an expired warning can be taken into account when considering whether a dismissal was fair or unfair under s98(4) Employment Rights Act 1996. Mr Stratford had the sort of disciplinary record which requires real commitment (17 incidents in less than 13 years). The most … Continue Reading

EAT stresses line between disability and unhappiness in the workplace

Fans of the unnecessary medicalisation of management issues in the workplace will be sadly disappointed by a new Employment Appeal Tribunal decision at the end of December. For everyone else, Herry – v – Dudley MBC represents a very sensible and timely reminder of where the line lies between being disabled on the one hand … Continue Reading

He’s making a list, he’s checking it twice… the year’s best misconduct cases

As the Festive Season reaches its peak Down Under, we have taken a look back at the more ‘interesting’ cases of 2016 to help Santa prepare his Naughty or Nice List for Australian employers: First to be considered for Santa’s list is a labourer who, in the midst of a heated discussion, somewhat unchantably called … Continue Reading

Unwinding settlement agreements through lack of mental capacity

When you sign up a Settlement Agreement with an ex-employee you think that’s the end of the matter, right? Clearly that is the general intention, but we already know that even the most procedurally prim and proper settlement agreement can be undone by evidence that it was entered into by fraud or misrepresentation and now … Continue Reading

OSHA Reporting Rule Now In Effect – Injunction Request Denied

Texas is currently a hot spot for legal challenges to U.S. Department of Labor (DOL) administrative rules.  Just this past week, a judge in the Eastern District of Texas granted a preliminary injunction and ruled that the DOL’s Overtime Rule was to be put on hold because the state and business plaintiffs were able to … Continue Reading

Freedom of expression of employees or abuse, all depends on the context in France

In a recent case Cass. Soc. Sté Cegedim v. S, the French Labour Supreme Court upheld the decision of the Court of Appeal that an employee’s dismissal was void, on the ground that his freedom of expression had been violated. The employee had criticised the company’s management in an email sent to all his colleagues … Continue Reading

New Overtime Regulations Put On Hold – U.S. Federal Court Judge Enjoins Implementation of FLSA Regulations

As we reported previously, in September 2016, 21 U.S. states filed a lawsuit to enjoin the implementation of the long-anticipated Fair Labor Standards Act (“FLSA”) regulations, which were scheduled to go into effect on December 1, 2016. The states argued that the Department of Labor’s regulations (the “Final Rule”) would force states and businesses to … Continue Reading

Bonus agreements in Germany – Courts may determine amount of bonus payment instead of employer

The interpretation of bonus clauses in German employment contracts is a never-ending fountain of judicial discussions and disputes. Employers always try to achieve the greatest level of flexibility possible while employees naturally seek clear conditions that guarantee that the agreed bonus is paid once certain requirements are met. In light of recent cases in the … Continue Reading

U.S. District Court Judge Sides With EEOC, Holds That Title VII Prohibits Discrimination Based Upon Sexual Orientation

Title VII of the Civil Rights Act of 1964 protects employees by prohibiting employment discrimination based on race, color, religion, national origin, and sex.  This much is clear.  What is not clear is whether the prohibition on sex-based discrimination extends to sexual orientation-based discrimination?  The United States Equal Employment Opportunity Commission (“EEOC”) – the government … Continue Reading

Momentum Continues Against Validity of Class and Collection Action Waivers – Delaware District Court Judge Refuses to Enforce Class Action Waiver

We have been closely monitoring the battle over the legality of class and collective action waivers under the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) has been steadfast in its position that such waivers run afoul of the NLRA.  The Fifth Circuit was the first Circuit Court to weigh in, consistently … Continue Reading

A kiss is just a kiss, a sigh is just a sigh; the fundamental things apply, as time goes by, says EAT

What a remarkably prescient little message from the late Louis Armstrong to all those employers on the receiving end of a service provision change under TUPE.  Regulation 3 of TUPE says that a service provision change occurs where activities cease to be carried out by one business and are contracted-out, moved between external contractors or … Continue Reading

Procedural leak sinks employer’s reliance on workplace drug tests

Although drug and alcohol testing is generally recognised in Australia as forming part of an employer’s armoury for managing its health and safety obligations, a recent Fair Work Commission decision has provided a salutary reminder that employers in Australia which fail to follow best practice when conducting such tests risk being on the wrong end … Continue Reading

UK employer obliged to offer pay protection to disabled employee who was redeployed

UK employers take note – the Employment Appeal Tribunal has recently ruled that an employer was obliged to continue paying a disabled employee his full salary even though he had been redeployed into a less well paid role because he could no longer carry out his normal duties as a result of his disability.  Such … Continue Reading
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